Edward Lamb appears in London Borough of Hackney v P & Ors [2022] EWHC 1981 (Fam)

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02/09/2022

Edward Lamb appears in an important case concerning the scope of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility: London Borough of Hackney v P & Ors [2022] EWHC 1981 (Fam).

Mr Justice McDonald handed down Judgment on 29 July 2022 in a case concerning 3 questions relating to the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility. The case concerned a child who had previously been cared for by her grandmother in Tunisia and then brought to England and Wales. The local authority issued care proceedings and the following preliminary issues arose (upon transfer from HHJ Hughes QC):

i) Does the jurisdictional scheme under Chapter II of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility apply to care proceedings under Part IV of the Children Act 1989 and, if so, does it apply to these proceedings notwithstanding this case involves a non-Convention State?

ii) If the jurisdictional provisions of Chapter II of the 1996 Hague Convention do not apply to these proceedings under Part IV of the Children Act 1989 involving a non-Convention State, does jurisdiction arising out of the presence of the child in the jurisdiction subsist for the purposes of care proceedings pursuant to Part IV of the Children Act 1989?

iii) If the question of habitual residence falls to be determined in this case, whether under the jurisdictional provisions of Chapter II of the 1996 Hague Convention or otherwise, what is the relevant date for that determination?

Issues (i) and (ii) had never been argued before an English Court. The Court determined that in respect of (i) Hague 1996 does apply between a contracting state and non-contracting state and in relation to (ii), if the child is not habitually resident (to be argued in due course at a later hearing) in England and Wales for the purposes of Art 5, the common law jurisdictional basis of presence will subsist in respect of the child.

Issue (iii) has been the subject of conflicting High Court authority [see RE NH (1996 Hague Convention: Habitual Residence) [2016] 1 FCR 16 and Warrington Borough Council v T and others [2022] Fam 107]. The Court determined that the relevant date was at the date of the hearing and not the point at which proceedings were issued or some other date.

The matter is listed for a further hearing to determine habitual residence and forum.

Edward Lamb was led by Mark Twomey QC and was instructed by Hackney Legal Services. Edward Lamb has a multi-disciplinary practice and his family work focuses on the law relating to children within an international context.

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Edward Lamb KC

Call 2006 | Silk 2024

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